Opinion
No. 20637
Opinion Filed March 8, 1932.
(Syllabus.)
1. Trover and Conversion — Action for Conversion — Burden of Proof — Failure of Proof.
In an action to recover damages for conversion of personal property, the burden is upon the plaintiff to establish the conversion thereof, and where the evidence shows that the property alleged to have been converted was owned by and in the possession of the plaintiff and another jointly and there is no evidence as to the percentage of ownership or of the value of that portion owned by the plaintiff, there is a failure of proof.
2. Same — Judgment for Plaintiff not Sustained.
Record examined and held: The judgment is not sustained by any competent evidence.
Appeal from District Court, Ottawa County; Wayne W. Bayless, Judge.
Action by J.H. West against A. Besse. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.
A.M. Armstrong, for plaintiff in error.
J.W. Stalcup and Chas. R. Weaver, for defendant in error.
This is an appeal from a judgment of the district court of Ottawa county in favor of the defendant in error, the plaintiff in the trial court, against the plaintiff in error, the defendant in the trial court. Hereinafter the parties will be referred to as plaintiff and defendant. The action was to recover damages for conversion of personal property. The jury returned a verdict in favor of the plaintiff, and judgment was rendered thereon, from which judgment the defendant appealed.
The plaintiff alleged ownership of the property in question, and the defendant filed a general denial, which put in issue the question of the ownership of the property. The burden was upon the plaintiff to show ownership of the property in him. The record shows that he testified that the property belonged to "myself and son." There is nothing in the record to show what portion of the property belonged to the plaintiff or the value of the portion thereof which belonged to the plaintiff. The plaintiff failed to sustain the burden placed upon him to prove ownership of the property in himself. There is no competent evidence in the record reasonably tending to support the plea of ownership of the property by the plaintiff and there is no competent testimony in the record reasonably tending to show the value of that portion of the property owned by the plaintiff. There is nothing on which to support the judgment rendered.
For the reason stated, the judgment of the trial court must be, and it is reversed, with directions to grant the defendant a new trial.
LESTER, C. J., and RILEY, HEFNER, CULLISON, SWINDALL, McNEILL, and KORNEGAY, JJ., concur. CLARK, V. C. J., absent.
Note. — See under (1), 26 R. C. L. 1147, 1148; R. C. L. Perm. Supp. p. 5848.